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FOR PUBLICATION
No. 15-10034
v.
D.C. No.
5:08-cr-00938-LHK-2
JAMIE HARMON,
Defendant-Appellant.
OPINION
Criminal Law
Affirming convictions for money laundering, the panel
held that a prosecutors failure to correct false testimony
before a grand jury and failure to disclose impeachment
information about a grand jury witness even if done
intentionally do not constitute structural error requiring
automatic reversal, but are harmless as a matter of law after
a petit jury returns a guilty verdict.
The panel explained that United States v. Mechanik, 475
U.S. 66 (1986), makes clear that something other than
dismissal such as a state bar inquiry or an investigation by
the Office of Professional Responsibility is the proper
recourse under the facts of this case.
The panel held that the prosecutions asking the district
court ex parte at trial to decide in camera whether the
witnesss informant activity need be disclosed was not
improper.
COUNSEL
August Gugelmann (argued) and Edward Swanson, Swanson
& McNamara LLP, San Francisco, California, for DefendantAppellant.
OPINION
OWENS, Circuit Judge:
Defendant-Appellant Jamie Harmon appeals from her
convictions for money laundering. She argues that the
prosecutors errors before the grand jury constitute structural
error, requiring reversal. She also contends that the
governments failure to disclose impeachment evidence about
a hostile defense witness mandates a new trial. Because the
grand jury errors are not structural, and any impeachment
evidence immaterial, we agree with the district courts wellreasoned analysis and affirm.
I. Factual and Procedural Background
To make a long and convoluted story short: Christian
Pantages ran a business that resold stolen computer
equipment as legitimate. He was charged in state court with
receiving stolen property, and retained Harmon as his
criminal defense attorney. Fearing that his bank accounts
were frozen, Pantages searched for a way to access the funds
derived from his stolen computer equipment scheme. His
solution was his attorney, Harmon.
The astute reader will note that Yan Ebyam is a play on Yes and
No, Maybe. Cf. Star Trek, All Our Yesterdays (first aired March 14,
1969) (introducing viewers to Mr. Atoz, the last resident of planet
Sarpeidon and a shifty librarian).
2
Hollywood could turn this into Breaking RAM, with Pantages and
his wife as Walter and Skyler White, Ebyam as Jesse Pinkman, and
Harmon as Saul Goodman.
Pantages testified that during one of his meetings with Harmon, he told
her he did not know how to cash the two checks because he thought his
account was frozen. Pantages said Harmon suggested depositing the
checks into her client trust account and returning the proceeds to Pantages.
After Pantages signed the checks over to Harmon, she returned almost
$100,000 over the next six weeks. Harmon issued checks in the following
amounts to Pantagess wife: $15,000, $10,000, $10,000, $10,000.
Harmon also wrote a check to Pantages for $54,000 and suggested he go
to her personal banker and have the check broken into smaller amounts
and issued as cashiers checks.
5
The parties frequently discuss prosecutorial misconduct during grand
jury proceedings in the context of the Rule 33 motion for a new trial.
Because Harmon is asking for us to dismiss the indictment, rather than for
a new trial, we construe this as an appeal of her motion to dismiss the
indictment.
10
The now former Assistant United States Attorney who appeared before
the grand jury also was part of the trial team. Our concerns are limited to
him we do not have concerns about his fellow trial counsel.
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